ICE Records Reveal Disturbing Impact of Biden Enforcement Freeze
ICE personnel are alarmed and discouraged by President Biden's executive order that all but shuts down immigration enforcement within the country. The public should be, too. According to several sets of ICE records I have analyzed, confirmed by conversations with ICE officials in the field, this order will prevent the arrest and removal of nearly all of ICE's caseload of criminals — including many aliens who have been convicted of the most serious crimes on the books. And the parts of the country that will be most affected will be those areas that have cooperated with ICE to ensure that criminal aliens are removed — such as Georgia and Texas.
To begin to assess the impact of the order, I examined case records of all aliens removed by ICE in FY 2018, which I obtained through a FOIA request, and other sets of data that have been published in the ICE FOIA Library. Here's what these records reveal:
In 2018, ICE removed 95,360 aliens from the interior of the country. If the new Biden deportation policies had been in force and applied to ICE's 2018 interior caseload, a total of 91,993, or 96.5 percent, would not have been subject to removal. Only about 3,367, or 3.5 percent, would have been considered appropriate to remove from the country.
This is not because these aliens are harmless or sympathetic cases. After all, ICE's interior caseload is already comprised primarily of convicted criminals. It is because under the new rules only a very narrow set of cases of aliens can be deported — only those classified as current "aggravated felons", or the most serious criminals who are still in the custody of local authorities. Most prior convictions do not count, and are categorically excused if they occurred 10 years or more ago.
For example, said one ICE officer: "If a sex offender, or gang member, or other felon got prosecuted 11 years ago and got deported, comes back, gets removed again under 1326 [illegal re-entry after deportation, a felony], comes back again and gets arrested for simple theft or DUI, and one of our officers finds him in the jail, even though he is a prior deportee and aggravated felon, because it's over 10 years old and not related to what he was just arrested for, we can't touch him."
As a result of these strict conditions, only a rare few of the criminal aliens arrested throughout the country will be removable, and even many aliens who do have convictions for crimes of violence would be protected if the convictions occurred more than 10 years ago.
Table 1 shows the top 50 of the most serious criminal charges of aliens removed in 2018 who would no longer be subject to deportation under the Biden policy (the charges are the most serious charge on the alien's record). The list includes more than 10,000 aliens with drunk driving charges or convictions, 788 with homicide charges, more than 2,000 with weapons charges, more than 2,000 with drug trafficking charges, and more than 370 charged with rape. In addition, it includes many aliens removed because of repeated or serious immigration crimes, such as re-entry after deportation, immigration fraud, or human smuggling.
These examples illustrate one of the more alarming aspects of this directive. While it has been characterized in the media as allowing ICE to go after all of the "serious" criminals, in fact, according to the official guidance issued by acting ICE Director Tae Johnson to ICE officers, which I have obtained, still it excuses any and all serious crimes that were committed in the past, especially if they are unrelated to the latest criminal conviction that brought them to the attention of ICE. That is how so many murderers and rapists show up in the 2018 caseload as avoiding deportation under the Biden policy.
The relevant part of the guidance reads as follows:
Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an "aggravated felony," as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety. [Emphasis added.]
This means ICE can arrest only those criminal aliens who are actually in the custody of authorities — in other words, inmates. If they are released due to sanctuary policies, the ICE officer must submit the request to arrest the released criminal alien all the way up the chain of command to be approved by Johnson, the acting ICE director. If the past is any guide, he should be getting at least a dozen of these to review every day, and I hope some reporter or member of Congress will ask for information on the ones that he refuses to sign off on. I hope we don't have to find out when someone gets killed by one Johnson didn't sign off on.
Said one ICE officer: "With locals not cooperating on telling us about releases of deportable criminals we identify, we now need specific written agency approval to make any arrest of an agg felon once they are released. Even courthouse arrests are considered at large arrests, so we are dead in the water."
Another pointed out how the "aggravated felony" definition is especially problematic in California and other Ninth Circuit states:
[Judges in the Ninth Circuit] routinely rule that many crimes are not aggravated felonies. To make it worse in California, the DA's and public defenders often know what charges get people deported, so they work out deals to have the alien plead to another charge, just to avoid deportation. Even when that's not the case, California in general does not like to convict people of the crimes they commit, or they allow them to plead to a lesser charge and a lesser sentence. This allows the alien to stay under the aggravated felony bar.
In the memo, Johnson further spells out classes of convicted criminals that ICE officers may no longer arrest:
- Drug based crimes (less serious offenses), simple assault, DUI, money laundering, property crimes, fraud, tax crimes, solicitation, or charges without convictions.
- Where a crime is very old — over 10 years and not the reason for the individuals most recent apprehension.
- Prior removals or convictions under 1325 or 1326.
- Gang tattoos or only loose affiliation in records with gang activity.
Further:
If there is any question as to whether an individual falls into the category of posing a public safety threat, managers should err on the side of caution and postpone the individual's removal until a full assessment, in coordination with local Office of Chief Counsel, is conducted.
In other words, ICE officers should err on the side of release and risk to the public.
A more detailed listing of the criminal histories of the 2018 removal cases can be found here. To compile this list, I identified all of the cases of aliens arrested and removed in the interior of the country who had been classified as non-aggravated felons or serious drug offenders with recent conviction dates and recent final removal orders, in order to capture the full extent of the new restrictions on ICE.
The effect of the order has been immediate. ICE had been planning a nationwide operation in partnership with the U.S. Marshals targeting at-large sex offenders, but it was scuttled by the new directive. According to one of my ICE sources, most of the targets do not clearly meet the new standards, especially in California, where sex offenders routinely get to plead down to far lesser charges, especially if it helps them avoid deportation, and where certain sex crimes, such as sex with a minor, are not classified as felonies as they are in other states. Another ICE officer told me that they had more than two dozen deportable sex offender targets at large in his area who now will be free to re-offend.
Besides the obvious public-safety problems that will result from permitting criminal aliens to remain, the Biden order eliminates consequences for those who have already been removed, often multiple times. According to the ICE records, more than 28,000, or 31 percent, of the nearly 92,000 cases that would no longer be removed are prior deportees.
Further analysis (see Table 2) shows that the parts of the country that will suffer the most from Biden's decimation of immigration enforcement will be the parts of the country that have been the most fully cooperative with ICE, and which used immigration enforcement most effectively as a public safety tool. These places include the states covered by the Atlanta field office (Georgia, South Carolina, and North Carolina), the four Texas field offices, and the New Orleans field office, (Louisiana, Arkansas, Mississippi, Alabama, and Tennessee).
A different set of ICE records available in the FOIA Library reveals the impact of non-enforcement by county. Using a set of records enumerating each case of an alien removed after identification upon arrest by a local law enforcement agency from 2015 to 2017, it is possible to show which U.S. counties have had the most criminal alien deportations. Table 3 is a listing of the top 30 counties for criminal arrests during this period. These are the counties that can now be expected have the most protected criminal aliens under Biden's order.
Biden's order is a reckless experiment that is bound to have a human cost. But some state leaders don't want to find out the hard way exactly what happens under a deportation moratorium. Texas already has filed a lawsuit, citing the significant costs to Texas taxpayers of dealing with illegal aliens that the federal government neglects to remove, not to mention a formal agreement Texas has with the feds to provide notice and consultation before any major policy changes.
Between this freeze on ICE and the resurgence of the caravans hoping to benefit from Biden policies, it's hard to see how anyone will have an appetite to consider the mass amnesty and legal immigration expansion that Biden hopes to accomplish.
Table 1. Top 50 Criminal Charges | ||
| Driving Under Influence Liquor | 10,322 | |
| Traffic Offense | 4,724 | |
| Assault | 4,676 | |
| Marijuana | 2,739 | |
| Illegal Entry (INA SEC.101(a)(43)(O), 8USC1325 only) | 2,519 | |
| Aggravated Assault | 2,516 | |
| Illegal Re-Entry (INA SEC.101(a)(43)(O), 8USC1326 only) | 2,390 | |
| Drug Trafficking | 2,222 | |
| Weapons Offenses | 2,080 | |
| Cocaine | 2,064 | |
| Fraud | 2,042 | |
| Burglary | 1,925 | |
| Larceny | 1,839 | |
| Domestic Violence | 1,817 | |
| Sex Assault | 1,478 | |
| Robbery | 1,355 | |
| Dangerous Drugs, Unspecified | 1,295 | |
| Drug Possession | 1,260 | |
| Public Order Crimes | 1,205 | |
| Amphetamine | 1,116 | |
| Resisting Officer | 932 | |
| Battery | 856 | |
| Hit and Run | 825 | |
| Sex Offense | 825 | |
| Homicide | 788 | |
| Cruelty Toward Child, Disabled, Elderly or Wife | 684 | |
| Disorderly Conduct | 655 | |
| Forgery | 652 | |
| Smuggling Aliens | 603 | |
| Flight To Avoid (prosecution, confinement, etc.) | 588 | |
| Heroin | 581 | |
| Obstruction of Justice | 517 | |
| Lewd or Lascivious Acts with Minor | 505 | |
| Liquor | 397 | |
| Trespassing | 393 | |
| Rape | 379 | |
| Licensing Violation | 374 | |
| Failure To Appear | 310 | |
| Kidnapping | 305 | |
| Probation Violation | 298 | |
| Identity Theft | 275 | |
| Shoplifting | 263 | |
| Narcotics Equip - Possession | 254 | |
| Terroristic Threats | 246 | |
| Possess Fraudulent Immigration Documents | 241 | |
| Vehicle Theft | 238 | |
| Damage Property | 237 | |
| Sexual Exploitation of Minor | 231 | |
| Prostitution | 175 | |
| Driving Under Influence Drugs | 165 | |
| Subtotal | 65,376 | |
| Other Crimes | 3,886 | |
| Total Enumerated Crimes | 69,262 | |
Source: ICE. | ||
Table 2. 2018 Interior Removal Cases Classified | ||
| Field Office | Number | |
| Atlanta | 10,344 | |
| Baltimore | 697 | |
| Boston | 1,601 | |
| Buffalo | 872 | |
| Chicago | 5,000 | |
| Dallas | 9,064 | |
| Denver | 2,244 | |
| Detroit | 2,410 | |
| El Paso | 2,107 | |
| Houston | 7,438 | |
| HQ | 6 | |
| Los Angeles | 5,579 | |
| Miami | 4,842 | |
| New Orleans | 7,005 | |
| New York City | 1,743 | |
| Newark | 1,557 | |
| Philadelphia | 2,740 | |
| Phoenix | 4,490 | |
| Salt Lake City | 2,656 | |
| San Antonio | 5,281 | |
| San Diego | 2,977 | |
| San Francisco | 4,226 | |
| Seattle | 2,615 | |
| St. Paul | 2,770 | |
| Washington | 1,729 | |
| Grand Total | 91,993 | |
Source: ICE. Note: These are cases of removed aliens identified in ICE’s FY2018 enforcement | ||
Table 3. Top 30 Counties for | ||
| El Paso, Texas | 8,307 | |
| Reeves, Texas | 7,662 | |
| Maricopa, Ariz. | 6,560 | |
| Howard, Texas | 5,551 | |
| Harris, Texas | 5,316 | |
| Los Angeles, Calif. | 4,076 | |
| Hidalgo, Texas | 3,541 | |
| Cibola, N.M. | 3,450 | |
| Orange, Calif. | 3,199 | |
| Dallas, Texas | 3,174 | |
| Willacy, Texas | 2,577 | |
| Garza, Texas | 2,497 | |
| Kern, Calif. | 2,496 | |
| San Diego, Calif. | 2,493 | |
| Imperial, Calif. | 2,188 | |
| Pima, Ariz. | 2,029 | |
| Travis, Texas | 1,527 | |
| San Bernardino, Calif. | 1,409 | |
| Cameron, Texas | 1,368 | |
| Clark, Nev. | 1,360 | |
| Tarrant, Texas | 1,351 | |
| New York, N.Y. | 1,306 | |
| Concho, Texas | 1,224 | |
| Salt Lake, Utah | 1,158 | |
| Walker, Texas | 1,137 | |
| Webb, Texas | 1,108 | |
| Sacramento, Calif. | 982 | |
| Bexar, Texas | 956 | |
| Cook, Ill. | 881 | |
| Santa Barbara, Calif. | 862 | |
| Total, All Counties | 149,601 | |
Source: ICE. Biden's DHS Is Abolishing ICE Without Abolishing ICEOfficers 'now being told to enforce nothing'
The Washington Post ran an article this week captioned "New Biden rules for ICE point to fewer arrests and deportations, and a more restrained agency". That is one way of putting it. I prefer the following quote in the article, from one unnamed "distraught official": "They've abolished ICE without abolishing ICE." I have already reported on the DHS memorandum of January 20 limiting ICE arrests to three specified "priorities": spies and terrorists; aliens who entered illegally on or after November 1; and aliens released from incarceration on or after the date of that memorandum who have been convicted of "aggravated felonies", as defined in section 101(a)(43) of the Immigration and Nationality Act (INA). As a fig leaf, that memorandum notes that "nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein." Note, however, aliens lawfully admitted who are removable, for say, sexual abuse of a minor (an aggravated felony) are not "unlawfully in the United States" until they have been ordered removed. So, if said child molester was released from federal, state, or local custody prior to Inauguration Day, 2020, he or she is not to be arrested by ICE under the limitations in that memorandum. This is not a matter of semantics or legalese: Agents and officers know the law as well as I do, and will certainly interpret this sentence in the memorandum as I have. (See my colleague Jessica Vaughan's analysis applying the new priorities to 2018 interior removal statistics; she found that 96.5 percent of those removed would have been allowed to stay.) The memorandum continues: "In order to ensure appropriate allocation of resources and exercise of prosecutorial discretion, the Acting Director of ICE shall issue operational guidance on the implementation of these priorities." Which brings me to the Post story. It reports that ICE is preparing such guidelines "as the Biden administration attempts to assert more control over an agency afforded wide latitude under President Donald Trump." That is in the first line of the article, but bears more analysis. It is not as if ICE officials had untrammeled authority to grab whomever they wanted off of the street under Trump. They could only arrest aliens whom they had concluded were removable under the INA — the law that Congress enacted and the president signed. Put another way, ICE could only arrest, detain, and remove aliens your elected representatives said that they could arrest, detain, and remove. That is actually an overstatement, as Trump issued an executive order with his own ICE enforcement priorities, but if officers happened upon other removable aliens, they could be arrested, as well. And, as I explained in a January 26 statistics-filled post captioned "The Canard of 'Hyper' ICE Enforcement Under Trump", ICE actually was more restrained under the 45th president than they were for the majority of President Obama's time in office. Here are two key takeaways:
Those are actual statistics, not feelings, thoughts, or impressions. With due respect to DC's paper of record, if ICE had "wide latitude" under Trump, it is only when compared to the last years of the Obama administration, and they used it judiciously. The Post reports that according to "interim instructions sent to senior officials", ICE "will no longer seek to deport immigrants for crimes such as driving under the influence and assault". In an October 2019 post, I asked the question "Are Immigration Advocates Pro-Drunk Driver?", and it appears to be an evergreen one. Of course, as I reported last March, then-candidate Biden threatened to fire ICE officials who arrested and removed any alien who had not been convicted of a felony (more on that below), and that he did not consider "drunk driving as a felony". That was a campaign promise. The new guidelines are where the metaphorical rubber — and the literal drunk driver—meet the road. Aliens convicted of or facing charges for DUI have been the leading category of foreign nationals who have been arrested by ICE over the last four years: ICE Enforcement and Removal Operations (ERO) arrested 35,716 aliens with DUI convictions and 20,091 aliens facing charges for that offense in FY 2020; 49,106 aliens with convictions and 25,417 facing charges in FY 2019; 54,630 aliens with convictions, 26,100 with charges in FY 2018; and 59,985 aliens with convictions and 20,562 charged in FY 2017. Why focus on them? Because they are dangers to others and themselves, and are likely to do it again. The National Highway Traffic Safety Administration reports that "[e]very day, almost 30 people in the United States die in drunk-driving crashes — that's one person every 50 minutes" — a total of 10,511 needless deaths in 2018. Mothers Against Drunk Drivers (MADD) reports that the average drunk driver has driven drunk 80 times before their first arrest, and that one-third of all of those arrested for drunk driving are repeat offenders. "Follow the science." Under the new Biden priorities, ICE agents and officers will have to get HQ clearance before arresting any criminal alien after they have been released from custody. Note that many sanctuary jurisdictions will not give ICE the heads-up that an alien will be released, and may not allow agents and officers into their facilities. How will officers in those jurisdictions arrest even the remaining criminal aliens? Needless to say, getting approval from Washington will be a time-consuming and often frustrating process, and it will be the rare case as a practical matter in which an alien makes the cut. Further, as former ICE Director Ron Vitiello explained: "Clearing enforcement actions in Washington, D.C., sets a tone that Agents do not have the trust and confidence of their leadership at ICE HQ or DHS and possibly higher in the chain of command." With due respect to Chief Vitiello, it is not a tone — it is a symphony. That said, and as the foregoing demonstrates, not even every criminal alien will be treated equally. The new policy memorandum is apparently focused on alien criminals who are "public safety threats", but its definition of that term and yours might be very different. According to the Post, ICE will not be looking for many aliens convicted of simple assault (as noted above), "money laundering, property crimes, fraud, tax crimes, [or] solicitation", nor will it go after aliens who have been charged but not convicted as a general rule, either. Simple assault may or may not be a ground of removal and an aggravated felony (depending on how it is defined under the applicable statute and the sentence), but offenders pose a danger to the community, and there is no reason to suffer the continued presence of an otherwise removable alien who has been convicted of the crime. In 2015, the rate of simple assault in the United States was 11.8 per thousand, meaning that the odds are good that you or someone you know have been or will be a victim. Money laundering is an aggravated felony if the funds exceeded $10,000. More importantly, however, it is a "secondary offense", as it, in the words of the Congressional Research Service (CRS), "is commonly understood as the process of cleansing the taint from the proceeds of crime." Simply put, you don't "launder" money unless it was dirty when you got it. "Property crimes" may be aggravated felonies, as well. Here is what the National Institute of Justice (NIJ) at DOJ has to say about such offenses: "In a property crime, a victim's property is stolen or destroyed, without the use or threat of force against the victim. Property crimes include burglary and theft as well as vandalism and arson." If you steal my stuff, or burglarize my home, you're a threat. NIJ explains it "supports projects that strive to understand and reduce the occurrence and impact of property crimes." One sure way to reduce the impact of property crimes is to remove aliens who have committed them from the United States, because that dissuades potential offenders and takes future recidivists from the community. There's no indication that it was consulted by DHS leadership, however. Fraud? Again, an aggravated felony if the loss is $10,000 or more (and a removable crime involving moral turpitude). AARP (whose constituency is uniquely susceptible to scams) explains that: "Overall fraud losses were more than $1.9 billion last year, up from more than $1.48 billion in 2018, for a 28 percent jump." Why would the Biden administration de-emphasize the removal of aliens for a crime that is getting worse, and costing Americans more? Tax crimes need no explanation. Tax evasion, again, is an aggravated felony where the revenue lost to the government is $10,000. I pay my taxes, and so should you. Justice Holmes explained that "[t]axes are what we pay for civilized society." He was echoing James Madison, who stated: "The power of taxing people and their property is essential to the very existence of government." Pro-amnesty group America's Voice asserts: "Immigrants, including those without documentation, pay billions of dollars in taxes to federal, state and local governments every year." If so, what is the problem with removing the few bad apples who don't? And then there is solicitation. Justia explains: "Solicitation is an inchoate crime that involves seeking out another person to engage in a criminal act." That means, you are looking for someone to commit a crime with you. Why would we want people who are looking for others to help them commit a crime to remain in the community? Even for the few remaining criminal aliens left after these exceptions, ICE had better act quickly. As per the Post: "In instances where the aggravated felony is more than 10 years old and not the reason for a recent arrest, that individual would not be considered a public safety threat" who would be amenable to ICE apprehension under the Biden rules. Consider that for a moment. An alien convicted of murder (an aggravated felony), who came to ICE's attention 10 years and one day after that conviction as a result of an arrest for, say, DUI, would not be subject to arrest and removal, despite the fact that section 237(a)(1) of the INA states: "Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien" has been convicted of an aggravated felony. (Emphasis added.) It was a similar "shall" that prompted Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas to issue a temporary restraining order blocking implementation of a 100-day "pause" on most removals in the referenced January 20 DHS memorandum (as I explained on January 27). Congress did not intend to give ICE latitude in deciding whether or not to remove criminal aliens, and this policy will likely give Texas (the plaintiff in that case) plenty of opportunities for legal challenges. Even gang affiliates will be cut a break under the policy, according to the Post. Only aliens with "well-documented gang affiliations" will be considered public safety threats, not those who only have: "gang tattoos or records showing 'loose affiliation with gang activity'" (whatever the latter means). Two points: First, does anybody believe that ICE was deporting too many gang members? Second, I am fairly familiar with how gangs operate. MS-13 does not issue membership cards, and transnational criminal organizations are dependent upon confederates and affiliates to help them carry out their criminal activities. Case in point: In the May 29 killing of 16-year-old Gabriela Alejandra Gonzalez Ardon in a rural area in northern Baltimore County, Md. (a case about which I have written extensively), the county police have charged five individuals who it believes to be "affiliated with the MS-13 gang". Would those five have otherwise made the Biden-DHS cutoff if ICE had arrested them before that murder? I don't know, but probably not. The aforementioned "distraught official" was quoted by the Post as stating: "It literally feels like we've gone from the ability to fully enforce our immigration laws to now being told to enforce nothing." That's my take, too. | ||
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